A libertarian take on human rights and intellectual property

Disclaimer: This essay is an intellectual assessment of legislation and judicial decision-making to date from an equal-opportunity competitive point of view, originally written on February 13, 2010. The author’s current opinion would apply a more pragmatic take on human rights and intellectual property given the economic context in which society emerges, taking into account the bigger picture of industry and regulation as it does exist, and working from there to promote economic development.

How do we unite humanity? How do we maintain honest governance? How will technology be used either for the benefit or for the detriment of society? Questions like these spark in the minds of socially conscious individuals, and while they may not in others due to what could be considered impractical idealism, one thing appears evident: individuals think in many different ways, and they are strongly influenced by their environment. With the rise in the influence of money, individual rights have been pushed second to the pursuit of profit. This has led to cultural acceptance of deliberate social stratification; that others must lose rights in order for others to have more due to scarcity. What has led to this, though? If it is accepted, then this is dependent on the information each individual has; information, whether public or private, has come to define society.

The activists who dedicate their time to various progressive causes understand that appreciation of issues on a wider scale benefits these causes. When it comes to guaranteeing the rights and liberties people desire to maintain, it is the right to privacy and freedom of speech that allow for the persistence of the rest.[i] For better or for worse, technology has hit the core of these liberties. Although easy to generalize in a few pages of writing, the relationship between intellectual property and human rights continues to grow, and it could be argued that the two, in their strongest forms, are antithetical; this is why a balance must be made between the two in order to safeguard societal progression.

Creativity

It could be argued that privacy and free speech are generalized liberties that do not deserve elaborate protection due to the potential troubles behind having them[ii], but it can be argued that these rights, properly balanced[iii], will progressively enhance society. While money does guide many behaviors people use to survive, creativity has guided society through every progressive change it has endured. The agricultural and industrial revolutions were spawned not only out of a desire to maximize profit, but out of the creative minds of individuals who used existing knowledge and resources to create what people today call inventions, resulting in economic progress irrespective of the desire for profit. That creativity comes from information – without it, society is less susceptible to undergo progressive change.

Perception

The attitudes and reflections of individuals in today’s society are borne out of the knowledge they have collected over time, followed by their perceptions in the existing environment. Social psychology aside, the past century has produced a plethora of change, particularly in information technology. Society has applied technology to make business processes more efficient, maintain communication with loved ones, and improve the efficiency of other processes, such as enforcement, military and security. Unfortunately, the latter processes have entrenched on the former, as technology has become sophisticated enough to retrieve and apply information in ways that an everyday regular person would call invasion of privacy and restriction of free speech if he or she knew “what was going on.” Once again, the pursuit of profit[iv] and the consideration of unidentifiable national security issues[v] have come to affect these rights.

Stratification

While laws have been enacted to protect the rights of individuals who author different works, some of these laws, either in their statutory or case law form, have been interpreted in ways that interfere with the basic individual rights of authors, innovators, and consumers alike – the DMCA is only one in the United States that has caused a great deal of frivolous litigation and threats to the average consumer, such as the RIAA sending subpoenas to university students to pay a fine or face lawsuits that could put them and their families into financial trouble.[vi] Intellectual property is a human rights issue. Academically speaking, intellectual property should be used for not only the benefit of the author or innovator involved, but also for its consumers and even its competitors. Intellectual property rights have been argued as human rights, but this could not be the case if some of them can infringe on other, tangible human rights. The ideal free market individuals desire is affected not only by resource scarcity, but also by political power scarcity – when legislation exists in ways that strengthen parties of differential advantage, it can become too difficult for smaller competitors to compete and even too difficult for disadvantaged consumers to purchase and consume the various kinds of products protected by intellectual property law.[vii]

Paralysis

Intellectual property was meant to exist to protect rights but also benefit the public – for example, with patent protection, innovators are encouraged to disclose their inventions in consideration for a virtual monopoly on the market-control of that product. However, when the few in differential advantage have the capital to acquire patents in order to prevent legitimate competition, a gray area emerges as to the usefulness of the patent construct. For example, technological innovation has freed humanity from simple chores from sewing and cleaning clothes to manufacturing automobiles with minimal to no human effort. Fully automated restaurants have been developed which free humans from working in mundane and boring jobs. However, another gray area emerges when a player in the energy industry patents advanced battery and renewable energy harnessing technologies followed by rarely exploiting the technologies until near the expiration date of the patent, paralyzing technological progress and maintaining profit on an existing, prior art. An example of a prior art here would be in the oil and gas sector, in which advanced technologies have been patented and economically suppressed, leaving the patent owner time to innovate and profit from the prior art of oil production for as long as possible given the scarcity of oil.[viii]

Restriction

As government has been meant to provide rights to the individuals in society as well as prevent injustice, the economic understanding of elected officials and the degree to which they emphasize these issues will determine just how well they represent the people in these areas. Technological progress becomes economic progress when uninhibited and available for the wider public to enjoy. In distinction to the Felton v RIAA case, powerful copyright holders have unfortunately made their way into stopping “violators” in the United Kingdom, one of which created a device that video game players may install onto their console system to evade copyright protection mechanisms.[ix] This could set an unjust precedent that rights holders may argue should justify the criminalization of using devices on which infringement may occur, such as BitTorrent. While it may sound unreasonable to the average consumer to ban the use of BitTorrent and other seemingly harmless peer-to-peer software applications, several public universities and their accommodation facilities in the United Kingdom already block BitTorrent traffic from their networks with the reasoning “because it can be used for infringing copyright,”[x] even though the same or similar peer-to-peer technologies are used for non-infringing purposes.

Globalization

Moving from the developed countries of the United States and the United Kingdom to developing ones, consideration must be given to how intellectual property and technology affect the world as a whole. Trade does not stop within a country, and with ever-expanding technology comes ever-expanding profitable trading policies[xi], allowing for potential exploitation of developing countries. [xii] When patents and the pursuit of profit slow down the benefit of developing countries, a very clear issue arises in which technology that could be applied to better society is instead paralyzed due to the inability of such countries to afford it. Rights come with responsibility, and reasonably so, they should come with social responsibility.

Treaties: Institutions

Technology improves healthcare, education, and communication systems on a dramatic level, and if international organizations, such as the World Intellectual Property Organization (WIPO) and the World Trade Organization (WTO), do not take this factor into account, profit pursuits will continue to far surpass the pursuit of human rights. Developments in the WIPO have led to its Development Agenda, showing that there is consideration of developing countries being taken into account. However, the further the world economy moves into intellectual property as the primary competitive market while the lasting tangible commodities such as food, clothing, and shelter are still required to be traded simply for survival, the further capital will spread itself thin at the detriment of the unfortunate. Unfortunately, the WIPO and the WTO, while broadly international, do not prevent the minority of developed countries from entering into agreements such as the Anti-Counterfeiting Trade Agreement (ACTA), which, if unchecked, could paralyze the progress of the WIPO’s Development Agenda. Therefore, as international treaties become further and further binding across the majority of the world’s people, so does the consideration of the effects of all possible intellectual property rights on the same people.

Treaties: Human Rights

Various human rights laws attempt to keep authoritarian and profit-motivated entities from entrenching on various liberties – the Universal Declaration of Human Rights (UDHR) and the International Covenant on Civil and Political Rights (ICCPR) are two examples that have strength in international law, so long as constituent countries give them respect. Articles 12 and 19 of the former detail respect of private life and of freedom of expression, while Articles 17, 19, and 25 of the latter detail respect of private life, freedom of expression and reception, and the right to take part in public affairs.[xiii] The emergence of international bodies such as the European Union must also be taken into account, as the recently ratified Lisbon Treaty affects both human rights and intellectual property rights – the divergence of copyright laws across the twenty-seven member states has in its own right caused interference in international trade[xiv], and arguments for or against harmonization of the laws have their merits. In the case of divergence, it can be said that the divergence shows the sovereignty of each member state, while the other end of the argument would state that convergence promotes efficient international trade and unifies Europe.

Intellectual Property vs Human Rights

Intellectual property rights, although they do promote innovation and protection of such in the monetary world, as a matter of principle, they do not deserve to supersede civil liberties and human rights. If the pursuit of profit becomes so desirable as to neglect consumer privacy in enforcing, for example, copyright holders’ rights, the precedent for the judicial system and for the culture would clearly be an unjust one – ISPs, typically private corporations, could end up becoming indirect law enforcement out of fear of losing sponsorship from copyright holders. This forces the hand of ISPs, which force even harder the hands of consumers, the individuals who should always have a right to use the Internet for lawful purposes. Unfortunately, attempts to pass legislation in France and in New Zealand have set a harmful precedent that may lead to further international support for ACTA, though in both scenarios the legislation was rejected or indefinitely postponed.[xv]

Awareness

While it is clear that there ought to be corporate social responsibility in consideration of international trade, all too often does the electorate forget that their elected leaders require the government to maintain social responsibility, too, by remaining constitutional in practice. In an increasingly complex world with increasingly complex problems such as terrorism, citizens tend to turn a blind eye to any injustice the government may conduct[xvi] due to the fear they might have over a situation[xvii], real or imaginary. When institutions conduct themselves in ways that are clearly violations of civil liberties and human rights and the government “for the people, by the people” does not actually serve the people, not only does it cause disaffection with the government and an “us versus them” mentality, it reduces general expectations of trust citizens have for their government. [xviii]

If the global perception is ever allowed to persistently believe in fears that can be manipulated into minimizing privacy and free speech, so persistently will the culture be paralyzed from attaining progress. It has always been through general security that an individual feels that he or she has been able to freely express ideas for the benefit of all people – the two rights are intertwined, they promote education, and ultimately promote societal progress. In some cases, a major controversy must be fueled before individuals are aware of their rights.[xix] Therefore, it is in the best interest of individuals and their society to be as aware as possible about the impact of intellectual property on their rights.

That is, if either of these two rights were severely restricted, so easily could other rights be restricted due to how these two freedoms, particularly free speech, allow for democratic participation. Meanwhile, the level of privacy one has can come to dictate the level of free speech he or she decides to apply due to environmental factors.

See http://boingboing.net/2009/12/09/google-ceo-says-priv.html. Google CEO Eric Schmidt essentially states that if something must be private, it probably should not be done, though BT Chief Security Technology Officer Bruce Schneier has a different opinion, which intertwines privacy and free speech, “For if we are observed in all matters, we are constantly under threat of correction, judgment, criticism, even plagiarism of our own uniqueness. We become children, fettered under watchful eyes, constantly fearful that — either now or in the uncertain future — patterns we leave behind will be brought back to implicate us, by whatever authority has now become focused upon our once-private and innocent acts. We lose our individuality, because everything we do is observable and recordable.”

Hoanca, Bogdan. “Freedom of Silence vs. Freedom of Speech: Technology, Law, and Information Security.” The main idea is that silence, or privacy, can be at odds with free speech. Different interest groups may want to communicate their materials freely, but this could come at the expense of the privacy an individual desires. The article argues that improved technological methods to ensure privacy and free speech will work far more efficiently than the repeated failure of legal mechanisms to balance to two, which often result in the restriction of one of the two freedoms more often given the law’s inability to account for technological progress.

17 U.S.C. amendments including the implementation of the Digital Millennium Copyright Act (DMCA), argued by opponents that it “chills free expression […], jeopardizes fair use […], impedes competition and innovation […], and interferes with computer intrusion laws,” per http://www.eff.org/files/DMCAUnintended10.pdf. Proponents such as the Recording Industry Association of America (RIAA) have made arguments and conducted questionable practices – for the pursuit of profit; Felton, et al., v RIAA et al., in which the RIAA threatened scientists with legal action for desiring to release legally created methods that could be used to infringe copyright.

50 U.S.C. Ch 36, Subch 1 (Electronic Surveillance). This implementation of the Foreign Intelligence Surveillance Act still provides the government broad sweeping powers over U.S. citizens that may be suspected of aiding and abetting terrorists as “agents of foreign powers.”

See http://www.thetartan.org/2007/10/1/news/download. This is one of several examples of university students affected by the pre-litigation strategy of the RIAA.

See Banta, D.H. (2001). “Worldwide Interest in Global Access to Drugs.” Journal of the American Medical Association 285 (22): 2844–46. Patents by default restrict competition in consideration of full disclosure of the patented item’s design. The argument here is that pharmaceutical companies have a direct incentive to bar competitors from providing these medicines to the poor who cannot afford the patented, expensive version.

U.S. Patent Nos. 6,255,015 and 6,969,567 are two examples. A primary reason the patents have been rarely exploited is due to the demand the patent holders have sought in order to supply products. Due to the heavy competition in the oil and gas sector, Chevron, the current patent owner, would argue that fully exploiting the patent would not be in their investment interest. This would be a Catch-22 argument, though, as with most infrastructure-related matters such as telecommunications, a tipping point is necessary to be passed for the product to sustain demand.

R v Gilham [2009] EWCA Crim 2293.

http://www.halls.london.ac.uk/documents/college/licence_agreement_double.pdf is one example, “Please Note: the use of applications which in practice are used almost exclusively in breach of the JANET Acceptable Use Policy [and the University's IT code of conduct after Acceptable use policy] will be deemed unacceptable, regardless of their actual use. Most notably, the use of peer-to-peer sharing software generally used for the sharing of material in breach of copyright is unacceptable.” While this statement is enforced as is in the License Agreement, the JANET Acceptable Use Policy (http://www.ja.net/documents/publications/policy/aup.pdf), never explicitly states such a restriction on the use of such software, while the “IT code of conduct” does not readily appear to exist.

Trade liberalization, with such treaties such as the North American Free Trade Agreement (NAFTA), the emerging European Union, and other economic agreements, has caused normally closed markets to be exposed to the effects of markets around the globe.

In reference to outsourcing and the poor conditions workers have to deal with, particularly if these workers have no other option; if the appropriate structural adjustments are not made in the outsourced country, then unemployment will be vast due to the technological unemployment that would occur; i.e., the country is not developed enough to handle the influx of technology that affects competition, so a few, privileged set of individuals in that country would benefit greatly by being able to compete in the global marketplace. See http://www.cato.org/pubs/pas/pa092.html. Regarding the World Bank, it is stated, “But the bank itself is based on an outdated theory of development economics, which assumes that all Third World economies need for growth is to be provided with capital handouts and modern technology.”

Directly related to ISPs forcing the hands of consumers, detailed in the subsequent paragraph.

See http://www.eff.org/deeplinks/2009/06/three-strikes-dead-in-france.

For example, ridicule of underrepresented minorities, torture of “enemy combatants” and surveillance of suspected terrorists.

For example, the “War on Drugs,” the “War on Terror,” and xenophobia. See https://www.apsanet.org/~polcomm/apsa%20papers/Davis-Silver.pdf. “More limited support for civil liberties is fed by the interaction of trust in the government and fear of terrorism. A high level of fear compels many people to adopt positions that they might otherwise find unacceptable.”

See http://www.aclu.org/free-speech/aclu-renews-its-call-investigation-civil-liberties-violations-rnc. Citizens used their right to assembly, met with fierce law enforcement response, causing various civil liberties violations. See alsohttp://www.telegraph.co.uk/finance/financetopics/g20-summit/5920924/G20-police-did-not-respect-protesters-human-rights.html. The Joint Committee on Human Rights in the United Kingdom Parliament has accepted that rights have not been respected: “Police have a ‘long way to go’ before they succeed in promoting and protecting human rights in their training and operations, the report concluded.”

E.I.P.R. 2010, 32(3), 99-103. When Facebook modified its terms of use regarding its control and use of data its users communicated to its servers, a public outcry caused Facebook to reinstate original, more protective terms, and since then, users have been more cognizant of their rights over the social networking platform, though the vast majority could still be argued to be unaware of most of what they share online.